Citation Nr: 1607876 Decision Date: 02/29/16 Archive Date: 03/04/16 DOCKET NO. 11-32 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease and arthritis, to include the issue of propriety of the reduction of the evaluation from 20 percent to 10 percent. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had an initial period of active duty for training in the Army National Guard from January 21, 1985 to May 18, 1985, and served a period of active duty from January 2008 to December 2008. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. Jurisdiction of the case has since been transferred to the RO in New York, New York. In January 2014 and November 2014, the Board remanded the case for additional development which has been completed, and the case has been returned for appellate consideration. This appeal was processed using the Virtual VA/VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of an increased evaluation for lumbar degenerative disc disease and arthritis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Bilateral plantar calluses are related to service. CONCLUSION OF LAW Bilateral plantar calluses were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for bilateral foot calluses which represents a complete grant of the benefit sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). A veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2014). To rebut the presumption of sound condition, VA must show by clear and unmistakable, or clear and convincing, evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b) (2015); VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease is considered to have been aggravated by active service if there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015). VA bears the burden to rebut the presumption of aggravation in service. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). However, aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(b) (2015); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The Veteran seeks service connection for a bilateral foot disorder, which he claims developed as a result of his period of active service. The Veteran attributes his bilateral foot disorder to the wearing of military boots while on active duty. The Veteran maintains that he began having foot pain while he was overseas; at that time, there was no foot doctor available and he was told that he would have to go to Germany for treatment. The Veteran states that he was eventually given pain medication but it did not work; as a result, he was discharged when his period of active duty was almost done. He relates that he continued to have problems with his feet after service; he went to the VA and was told that he needed surgery to correct his feet. The Veteran indicates that he underwent surgery on the right foot in April 2010. Service treatment records show that the Veteran was seen in February 1985, during active duty for training, with complaints of feet calluses of three days duration; the Veteran indicated that he had calluses on both feet. The pertinent diagnosis was calluses on the balls of both feet. Insoles were issued to the Veteran. In March 1985, the Veteran was seen for complaints of foot problems; the impression was right leg strain. During a periodic examination in November 1989 (during a period of service in the Army National Guard), it was noted that the Veteran had club foot repair. On a National Guard examination in January 2007, it was noted that the Veteran had mild hallux valgus of the right foot. It was also noted that the Veteran had undergone a bunionectomy on the left foot eight years prior to his service in the National Guard. The assessment was status post left bunionectomy with excellent results. Post service treatment records show that the Veteran received clinical attention and treatment for a bilateral foot disorder. These records show that the Veteran was seen in July 2009 with complaints of pain in the lower back, legs, and feet. He was seen at a podiatry clinic in August 2009 with complaints of painful plantar calluses. It was noted that he had the problems for many years. It was reported that the Veteran was in the National Guard and in Afghanistan. The assessment was painful plantar keratosis, dystrophic toenails. Another treatment note, dated August 29, 2009, reported a finding of a minute calcaneal spur was noted at the insertion of the right tendo-Achilles. In September 2009, the Veteran was again seen in the podiatry clinic for painful calluses of his feet; it was noted that he also continued to have back pain. In conjunction with his claim, the Veteran was afforded a VA examination in November 2009. At that time, he stated that he had pain; he did not report any weakness or fatigability of the feet. The Veteran indicated that he did not use any corrective devices. It was noted that the Veteran did not use any corrective shoe inserts or braces. At that time, he was unemployed; however, he stated that he was able to do his occupation. On examination, the Veteran had painful motion in the right foot; however, he had no edema, no weakness, no instability, and no tenderness. The Veteran was able to stand and walk for one hour with weight bearing. No flat foot was noted. Dorsiflexion was to 20 degrees in both feet, without pain. Plantar flexion was to 50 degrees in both feet without pain. The Veteran had a callosity on the right foot. He also had a callus on the first MTP joint of both feet. He had a scar on the first and fifth metatarsal bone. The pertinent diagnosis was post-surgical changes, left foot, hallux valgus, with degenerative joint disease in the MTP joint, 1st right. The Veteran was afforded another VA examination in May 2011. At that time, it was noted that the Veteran's claim folder and service treatment records were reviewed for purposes of the evaluation. The examiner noted that, on the first report of medical history dated in November 1984, the Veteran had no complaints of his feet and none were found on the physical examination associated with it. During activation in 1985, the Veteran reported to sick call on February 7, 1985, with calluses and problems with his feet and later, on March 29, 1985, for a right distal metatarsal foot pain. The examiner observed that the Veteran returned to the Guard and on November 18, 1989, in a Report of Medical History the Veteran indicated a foot problem, without specificity. The physical examination associated with that report raised the question of bilateral club feet. There was no further record of this and the Veteran gave no further information on the subject. The examiner added that the Veteran's medical records were silent regarding his feet until his deployment to Afghanistan in 2008. A complaint of foot pain is noted in the medical records on November 2, 2008. This was relayed, along with complaints of back and shoulder pain, that appeared to be the greater problem and no treatment for the condition was detailed. The pertinent diagnoses were: right hallux valgus deformity; degenerative arthritis at the right first MTP joint, status post osteotomy; and bilateral degenerative joint disease of the fifth MTP joints status post osteotomies. The examiner stated that it appeared that the Veteran's first problem with his feet occurred during his first enlistment in the National Guard in 1989 in a report of medical history and physical examination when the foot problem was recognized. There was no medical information in the intervening years since the initial enlistment and there was no medical information in the medical record from 1989 to 2007, when the Veteran was deployed to Afghanistan. There appeared to have been a surgical intervention that the Veteran did not recognize at present. Since this was not a matter of service record it was reasonable to assume that any surgical intervention did not occur during a period of activation. The examiner stated that one was then left with an aggravation of pain during a one year deployment to Afghanistan. While this may have exacerbated the pain, the deployment was not responsible for the most recent deformities necessitating the surgical intervention on April 1, 2010. Therefore, the examiner concluded that it did not appear to be as likely as not that the Veteran's present podiatric condition was a consequence of military service. The Veteran was afforded another examination in December 2014, the report of which reflects that the VA examiner reviewed the evidence in conjunction with evaluation of the Veteran. The examiner noted diagnoses of bilateral hallux valgus and bilateral plantar calluses. As to bilateral plantar calluses, the examiner opined that they were related to active duty based on his review of the electronic record and service treatment records showing bilateral foot calluses during active duty and documentation that calluses recurred and became persistent. As to left hallux valgus, the examiner determined that it was less likely than not incurred in or caused by service. He cited to the evidence, including the Veteran's statement at the December 2014 examination, that bunionectomy took place prior to service. Furthermore, the examiner found that left hallux valgus clearly and unmistakable existed prior to service and was not aggravated beyond its natural progression by service. He reasoned that there was no documentation of aggravation by active service and no evidence that the bunions were related to foot calluses With regard to right hallux valgus, the examiner found that it was less likely related to service based on a January 2007 examination report showing mild right hallux valgus, lack of documentation of right hallux valgus prior to 2007, and no evidence relating it to service. While right hallux valgus clearly and unmistakably existed prior to service, the examiner determined that it had not been aggravated beyond its natural progression by service. He noted that medical records dated in January 2007, October 2009, and January 2010 showed right hallux valgus with mild halgus limitus, and a bunionectomy was performed in April 2010. However, there was no evidence relating right hallux valgus to service and no evidence that active duty aggravated it beyond its natural progression. Based on the foregoing evidence and affording the Veteran all benefit of the doubt, the Board finds that the Veteran's bilateral plantar calluses are related to service. However, based on the evidence, the Board finds that service connection for bilateral hallux valgus was not warranted as the probative evidence of record indicates that the condition was related to service or aggravated therein. In this regard, the Board finds that the 2015 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, in consideration of both the Veteran's reported history, contemporaneous physical evaluation of the Veteran, and the Board's remand instructions. Furthermore, the examiner provided a complete and thorough rationale in support of his opinion. The Board has considered the Veteran's statements that his current hallux valgus is related to service, and/or was aggravated by service. In this regard, the Veteran, as a lay person, has not been shown to be capable of making medical conclusions, especially as to the complex medical opinion such as the etiology of any current hallux valgus, which is quite different from statements regarding the presence of scars or varicose veins which are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). Given the Veteran's lack of demonstrated medical expertise, the Board finds that the VA examiner's opinion to be the most probative evidence of record as to the etiology of his current hallux valgus, and this opinion ultimately outweighs the Veteran's contentions as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). ORDER Service connection for bilateral plantar callus is granted. REMAND As noted above, the Board remanded this matter in November 2014. Specifically as to the claim for an increased evaluation for lumbar degenerative disc disease and arthritis, the Board instructed the AOJ to issue a statement of case (SOC). To date, the AOJ has not issued one, and therefore the case must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: The AOJ should issue to the Veteran and his representative an SOC addressing the claim regarding entitlement to a higher evaluation for his lumbar spine disorder, to include the issue of propriety of the reduction of the evaluation from 20 percent to 10 percent. All applicable criteria should be addressed in the SOC, to include 38 C.F.R. § 3.105(a). Along with the SOC, the AOJ must furnish to the Veteran and his representative a VA Form 9 (Appeal to Board of Veterans' Appeals) and afford them the applicable time period for perfecting an appeal to this issue. (The Veteran and his representative are hereby reminded that appellate consideration of these claims may be obtained only if a timely appeal is perfected). If, and only if, the Veteran files a timely appeal, this issue should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs